United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
Meixian Ye brought this action seeking a writ of mandamus and
review under the Administrative Procedure Act
(“APA”) to compel the United States Customs and
Immigration Service (“USCIS”) to act on her
application for the adjustment of her immigration status. On
June 20, 2017, after she had commenced this action, USCIS
issued to plaintiff a Request for Evidence
(“RFE”). Presently before the Court is
defendants' motion to dismiss on the ground that the
action is now moot.
acknowledges that the “ball is in her court, ”
and that there is nothing presently that the Court can do for
her until she responds to the RFE and defendants undertake
further proceedings. However, appealing to this Court's
equitable discretion, she asks the Court to retain,
effectively stay, this case because it took so long for USCIS
to issue the RFE that she is not confident it will timely
process her application once she responds to the RFE. She
believes it is “foreseeable that the long, abnormal
delay in processing may continue to persist, ” and that
“[g]iven such possibility, . . . the Court should
exercise [its] equitable powers in this action.” She
does not say how she wants me to exercise these equitable
powers, but the implication is that I should be available to
step in if defendants engage in further delay.
provides individuals with a cause of action when agency
adjudication has been unreasonably delayed. Specifically, the
APA provides that “within a reasonable time, each
agency shall proceed to conclude a matter presented to
it.” 5 U.S.C. §555(b). It further provides that
courts shall “compel agency action unlawfully withheld
or unreasonably delayed.” Id. § 706(1).
“Where the agency in charge of the adjudication fails
to render a decision within a reasonable period of time, as
required by § 555(b), the Court has the power to grant a
writ of mandamus compelling an adjudication.” Am.
Acad. of Religion v. Chertoff, 463 F.Supp.2d 400, 420
Mandamus Act grants courts authority “to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff, ” 28
U.S.C. § 1361, but mandamus “is a drastic and
extraordinary remedy reserved for really extraordinary
causes.” Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367, 380 (2004) (internal quotation marks omitted).
For relief under the statute, there must be “(1) a
clear right in the plaintiff to the relief sought; (2) a
plainly defined and peremptory duty on the part of the
defendant to do the act in question; and (3) no other
adequate remedy available.” Anderson v. Bowen,
881 F.2d 1, 5 (2d Cir. 1989) (quoting Lovallo v.
Froehlke, 468 F.2d 340, 343 (2d Cir. 1972)).
is not entitled to mandamus relief or relief under the APA
because plaintiff has no right to the relief requested and
defendants are under no duty to act given the circumstances.
Plaintiff's application has been pending for less than
three years, and while certainly a substantial period of
time, it is not an unreasonable delay. See Pesantez v.
Johnson, No. 15-CV-1155, 2015 WL 5475655, *4 (E.D.N.Y.
Sept. 16, 2015) (noting that a five-year delay is not
unreasonable). The system is clearly overwhelmed and granting
plaintiff relief simply delays some other applicant from
getting relief. Equitable discretion requires consideration
of the public good as well as plaintiff's interest.
importantly, with an RFE pending, there is no role for the
Court, and “[j]udicial intervention in this case would
necessarily involve an intrusion into the defendants'
allocation of adjudicatory resources on the whole, and that
is something [the] Court is ‘institutionally
ill-equipped to do.'” Id. at *6 (quoting
Los Coyotes Band of Cahuilla & Cupeno Indians v.
Jewell, 729 F.3d 1025, 1038 (9th Cir. 2013)).
is a practice in this district by which immigration
applicants file suit under the APA and for mandamus relief as
a way to gain adjudication of their applications more quickly
by moving their applications “to the front of the
line.” Id. at *6. Here, plaintiff's
complaint has achieved that intended purpose. Having done so,
she seeks to press her advantage further, holding this
lawsuit over defendants' heads like the Sword of
Damocles, so that they will be incentivized to act on her
application, knowing that if they do not, she can press ahead
with this lawsuit.
purpose of the APA and the Mandamus Act is not to change the
negotiating leverage of parties in administrative
proceedings. Plaintiff brought this action for mandamus
because defendants were allegedly refusing to act. The
refusal to act is the prerequisite for the existence of a
case and controversy. Plaintiff, however, has received what
she wanted - action - and she acknowledges that is all she
can expect at this point. If the time comes in the future
where there is another delay that plaintiff believes is
illegal, plaintiff will be free to commence another
proceeding to challenge that delay. But now that relief has
been retained, this Court is not going to keep the case open
based on plaintiffs desire to have a judicial overseer of her
motion to dismiss plaintiffs complaint is granted. The Clerk
of Court is directed to enter judgment in favor of
defendants, dismissing the complaint.